COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00204-CR
RODNEY JAMES RICKETTS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
TRIAL COURT NO. 1321576R
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MEMORANDUM OPINION 1
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In two points, appellant Rodney James Ricketts appeals his third-degree-
felony conviction and his forty-nine year sentence for theft of property in an
amount of $20,000 or more but less than $100,000. 2 Appellant argues that the
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. § 31.03(a), (e)(5) (West Supp. 2014).
State presented insufficient evidence to support his conviction and that his
classification as a habitual offender for punishment enhancement purposes
violated his constitutional rights. 3 We affirm.
Background Facts
In October 2011, Bedford police officer Miles McLain responded to an
activated security alarm at a Subway restaurant. Upon arrival, Officer McLain
saw that the door to the store was open and a light was on. Officer McLain heard
a loud drilling noise coming from inside the shop. After calling for back-up,
Officer McLain hid behind a pillar outside the front of the store. As appellant left
the store, Officer McLain ordered him to the ground and arrested him.
In the ensuing investigation, the police connected appellant to a string of
twenty-six burglaries beginning in January 2011. Although the damage varied by
location, the store owners suffered a variety of losses including property damage,
theft of electronics, theft of tools, drilled safes, stolen cash, and the removal of
several books of Texas Department of Public Safety inspection stickers.
In April 2013, a grand jury indicted appellant with theft of property valued at
$20,000 or more but less than $100,000. The indictment included a habitual
offender notice for punishment enhancement purposes. Appellant filed several
pretrial documents, including an election for the jury to set his punishment if
3
See Tex. Penal Code Ann. § 12.41(1) (West 2011), § 12.42(d) (West
Supp. 2014).
2
convicted. At trial, appellant pled not guilty for the charge and not true to the
enhancement notice.
After the presentation of evidence, the jury convicted appellant. During the
punishment phase, the State presented evidence of three felony offenses out of
North Carolina and a third-degree-felony offense out of Harris County, Texas.
The jury returned a verdict finding the habitual offender allegations true and
sentencing appellant to forty-nine years’ confinement. After an unsuccessful
motion for new trial, appellant brought this appeal.
Evidentiary Sufficiency
In his first point, appellant argues that the evidence is insufficient to
support his conviction. Specifically, he contends that the State failed to
adequately prove the element of value because property owners testified to their
replacement costs rather than the fair market value of the stolen items at the time
of the thefts. 4 See Tex. Penal Code Ann. § 31.08(a)(1)–(2) (West 2011).
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768
4
Appellant contests only value. He does not challenge that the evidence is
sufficient to prove that he unlawfully appropriated property with the intent to
deprive owners of it or that his thefts comprised a continuing course of conduct
that could be aggregated. See Tex. Penal Code Ann. § 31.09 (West 2011).
3
(Tex. Crim. App. 2013). This standard gives full play to the responsibility of the
trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim.
App. 2011). We must presume that the factfinder resolved any conflicting
inferences in favor of the verdict and defer to that resolution. Jackson, 443 U.S.
at 326, 99 S. Ct. at 2793; Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.
2013).
To obtain a third-degree-felony theft conviction, the State needed to prove
that the total value of property stolen equaled or exceeded $20,000. See Tex.
Penal Code Ann. § 31.03(e)(5). Property includes any tangible personal property
or any document, including money, which embodies something of value. Id.
§ 31.01(5)(B)–(C) (West Supp. 2014). On review, we must give proper
deference to the valuation assigned by the trier of fact. See Tex. Code Crim.
Proc. Ann. art. 38.04 (West 1979); Winfrey, 393 S.W.3d at 768. As such, we will
reverse only if the evidence shows that no rational jury could find the total value
of cash, vehicle inspection stickers, and personal property at or above $20,000.
The unchallenged testimony of witnesses at trial is as follows:
• Anthony Ta, owner of Yogurtvana, reported $603.65 missing;
• Tawnya Langhoff, area supervisor of a Subway store, filed an insurance
claim listing $1,356 taken;
4
• Brian Wells, owner of four Subway stores, showed a total of $2,008.61
appropriated according to his point-of-sale printouts and estimated
another $280 missing in cash tips;
• Terry Clifford, representative at EmbroidMe, testified to $100 stolen out
of the cash drawer;
• Celestin Muhindura, operator of a small, local restaurant, showed
$2,200 taken according to a computer report;
• Monte Daily, owner of a Kwik Kar, reported $625 in cash stolen;
• Kelly Privett, owner of another Kwik Kar, estimated losing $200;
• Rabih Asmar, owner of a Subway store, showed $940.60 appropriated
according to point-of-sale printouts;
• James Cole, employee at a Kwik Kar, estimated $200 stolen from the
safe;
• Patrick Starrett, corporal for the patrol division of the Colleyville Police
Department, testified to taking a report of $200 missing after a burglary
of a Burger Island store;
• Geoffrey Malecky, manager of a Subway store, reported $548 taken
according to point-of-sale printouts;
• Bharat Patel, owner of a Subway store, estimated $1,300 missing from
the safe and back office;
• Wyatt Hurt, owner of Fat Daddy’s, reported a total of $2,200 stolen;
• Donnie Wilkerson, owner of a Subway store, showed a total of
$3,934.41 stolen according to end-of-day reports and a verified counter
check;
• Bhupendra Patel, owner of a Subway store, testified to $908.63
appropriated according to point-of-sale printouts;
• Richard Hollis, owner of a Subway store, estimated $900 taken;
• Donnie Rogers, area supervisor for a Subway store, reported $910.14
stolen from his safe;
5
• Sandra Leonard, manager of a Subway store, reported $1,253 missing
to the police;
• Caterina Kuan, employee at a Subway store, showed $910.63 taken
according to point-of-sale printouts; and
• Kanwar Singh, owner of a Subway store, testified to $1,090 taken from
his safe.
In addition to cash stolen, a representative from the Texas Department of Public
Safety calculated the value of the inspection stickers taken from the Kwik Kar
stores at $6,139.75. He testified that there is an active market for these stickers
and that a full book of stickers could be liquidated for cash.
On appeal, appellant does not contest the amount of cash stolen or the
value of the inspection stickers. Instead, he focuses on other property and a
distinction between fair market value and replacement value. 5 However, as the
uncontroverted testimony of the property owners established that appellant stole
more than $20,000 in cash and inspection stickers, we need not reach the issue
of proper valuation of the other property. See Gilmore v. State, 397 S.W.3d 226,
243–44 (Tex. App.—Fort Worth 2012, pet. ref’d) (explaining that if evidence is
sufficient to support guilt under one theory, we need not address other theories)
(citing Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003)).
5
Specifically, appellant focuses on the value of stolen computers, computer
components, and recording equipment. He argues, “The record is replete with
examples from the various franchise owners testifying to the replacement cost of
the components taken from electronic units or used computers . . . without first
ascertaining their fair market value near the time of the burglary.”
6
Adding the amounts described above, appellant stole $22,668.67 in cash.
Although at trial appellant attempted to undermine the property owners’
testimonies of cash taken, he has not challenged that evidence on appeal, and
determining the weight and credibility of the witnesses’ testimonies remains the
exclusive role of the jury. See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim.
App. 2010). Adding the value of the inspection stickers, appellant stole a total of
$28,808.42 before valuing the other property that he focuses on in this appeal.
Considering this figure, we conclude that a rational jury could have found beyond
a reasonable doubt that appellant stole more than $20,000 in property.
Accordingly, we hold that the State presented sufficient evidence to prove the
element of value. We overrule appellant’s first point.
Punishment Enhancement
In his second point, appellant contends that the trial court violated his due
process rights and his right to equal protection under the laws 6 when it allowed
his North Carolina convictions to be used for sentence enhancement.
Specifically, appellant argues that his North Carolina convictions would have
been only state-jail felonies if committed in Texas. As such, appellant argues
that he is being treated differently than a similarly situated Texas convict who
committed only a state-jail felony. See Tex. Penal Code Ann. § 12.42(d)
6
In summarizing his point, appellant cites the Fifth and Fourteenth
Amendments to the federal constitution. See U.S. Const. amends. V, XIV. He
also cites article I, sections 13 and 17 of the Texas constitution. See Tex. Const.
art. I, §§ 13, 17.
7
(increasing the punishment range to twenty-five years to life when a convicted
felon has twice before been convicted of a felony but stating that state-jail
felonies may not be used for this enhancement). 7 But see id. § 12.41(1) (stating
that a conviction obtained outside of the penal code is classified as a third-
degree felony if confinement in a penitentiary was a possible punishment). 8 In
response, the State argues that appellant has not preserved his constitutional
complaints.
To preserve a complaint for our review, a party must have presented to the
trial court a timely request, objection, or motion that states the specific grounds
for the desired ruling if they are not apparent from the context of the request,
objection, or motion. Tex. R. App. P. 33.1(a)(1); Landers v. State, 402 S.W.3d
252, 254 (Tex. Crim. App. 2013); Sample v. State, 405 S.W.3d 295, 300 (Tex.
App.—Fort Worth 2013, pet. ref’d). The trial court must have ruled on the
request, objection, or motion, either expressly or implicitly, or the complaining
7
The State proved a third-degree-felony conviction (possession of between
one and four grams of cocaine) in Texas for appellant. Thus, if one North
Carolina conviction also qualified as an enhancement-worthy felony under
section 12.42(d), appellant was subject to the increased penalty range of twenty-
five years to life.
8
The record shows that in 2001 in North Carolina, appellant was convicted
of multiple counts of breaking and entering. It is undisputed that confinement in
a penitentiary was a possible punishment for those offenses. The judgments
from those convictions required imprisonment with the North Carolina
Department of Corrections. Appellant appears to recognize that under section
12.41(a), his breaking and entering convictions from North Carolina qualify as
third-degree felonies in Texas, but he contends that this qualification violates his
constitutional rights.
8
party must have objected to the trial court’s refusal to rule. Tex. R. App. P.
33.1(a)(2); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011). A
reviewing court should not address the merits of an issue that has not been
preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App.
2010) (op. on reh’g); Sample, 405 S.W.3d at 300.
Further, the complaint made on appeal must comport with the complaint
made in the trial court or the error is forfeited. Clark v. State, 365 S.W.3d 333,
339 (Tex. Crim. App. 2012); Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim.
App. 2009). To determine whether the complaint on appeal comports with that
made at trial, we consider the context in which the complaint was made and the
parties’ shared understanding at that time. Clark, 365 S.W.3d at 339; Resendez
v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009).
If the complaint alleges a violation of constitutional rights, the appellant
must show a specific objection at the trial level or face forfeiture of the claim.
See Clark, 365 S.W.3d at 340 (“The court needs to be presented with and have
the chance to rule on the specific constitutional objection because it can have
such heavy implications on appeal.”). This requirement applies to both “facial”
and “as applied” challenges to the constitutionality of a statute. See Karenev v.
State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009); Flores v. State, 245 S.W.3d
432, 437 n.14 (Tex. Crim. App. 2008).
Appellant draws our attention to his objection to the trial court’s charge on
punishment. In that objection, appellant claimed that allowing the North Carolina
9
convictions to enhance his punishment created a full faith and credit 9 issue and
discriminated against him for being a citizen of another state at the time of the
prior crimes’ commission. At one point, appellant argued,
What I’m trying to prove up is that the habitual enhancement
. . . is going to be incorrect in that the convictions in North Carolina
treat my client differently because his convictions are from another
state[,] and . . . what he’s actually been convicted of would be
equivalent to a [state-jail felony] here in Texas.
Outside of his objection to the charge on punishment, appellant did not present
any other requests, motions, or objections to preserve a constitutional complaint.
By contrast, in his brief, appellant complains of four (two state and two
federal) constitutional violations. As appellant failed to raise his federal due
process and his state constitutional claims at the trial level, we hold that he has
forfeited these claims. See Clark, 365 S.W.3d at 340.
While appellant also never explicitly protested on equal protection grounds,
the objection to the charge on punishment suffices to preserve the argument. In
context, it appears that the parties understood appellant’s contention to be that
he faced a higher degree of punishment than that of a similarly situated Texas
criminal based solely on his state of residency at the time of his prior criminal
convictions. Cf. id. at 339 (noting that a non-specific error may be preserved for
review if the specific grounds are apparent from the context). As such,
appellant’s as-applied equal protection challenge to the constitutionality of the
9
See U.S. Const. art. IV, § 1. Appellant does not cite this provision on
appeal.
10
punishment enhancement statute has been properly preserved. See U.S. Const.
amend. XIV; State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013)
(“The Equal Protection Clause of the Fourteenth Amendment requires that ‘all
persons similarly situated shall be treated alike’ under the law.”) (quoting Wood v.
State, 18 S.W.3d 642, 651 n.9 (Tex. Crim. App. 2000)); Downs v. State, 244
S.W.3d 511, 518 (Tex. App.—Fort Worth 2007, pet. ref’d) (“To prevail on an
equal protection claim, the party complaining must establish two elements:
(1) the party was treated differently than other similarly situated parties; and (2)
the party was treated differently without a rational basis by the government.”).
But the equal protection challenge cannot succeed under the facts of this
case. While the Equal Protection Clause generally requires the same
governmental treatment for similarly situated persons, appellant has not proved
that he is similarly situated to someone who committed only a state-jail felony in
Texas. In other words, he has not established that his North Carolina convictions
would have qualified as Texas state-jail felonies.
The judgments from appellant’s North Carolina cases reflect that he was
convicted of “BREAKING AND OR ENTERING” under section “14-54(A)” of that
state’s general statutes. That section states today, as it did at the time of
appellant’s crimes, that any person “who breaks or enters any building with intent
to commit any felony or larceny therein shall be punished as a Class H felon.”
N.C. Gen. Stat. Ann. § 14-54(a) (West 2013) (emphasis added). In other words,
North Carolina provides the same level of classification and punishment for
11
breaking and entering regardless of whether the crime is committed in a
residence. See id.
In Texas, however, burglary (which includes entering a habitation or
building with intent to commit any felony) is a state-jail felony if committed in a
building other than a habitation but a second-degree felony (or in some cases a
first-degree felony) if committed in a habitation. 10 See Tex. Penal Code Ann.
§ 30.02(a)(1), (c), (d) (West 2011). Thus, appellant’s breaking and entering
crimes in North Carolina could have qualified, if committed in Texas, as either
state-jail felonies (which cannot be used for enhancement under section 12.42(d)
of the penal code) or more serious felonies (which can be used), depending on
the facts of those crimes. But the record does not disclose whether any of
appellant’s North Carolina breaking and entering convictions involved entering a
residence. 11 Thus, it is impossible to discern whether appellant, by effect of his
North Carolina convictions, is similarly situated with a Texas state-jail-felony
convict, who would not be subject to enhancement under section 12.42(d) of the
10
We disagree with appellant’s statement in the trial court that the Texas
and North Carolina statutes “seem[] to track” each other.
11
In the trial court, appellant appeared to recognize the need for developing
evidence of the facts surrounding his North Carolina offenses, stating, “If . . . the
North Carolina fact pattern for the offense . . . is the same exact fact pattern as
what in Texas would only be a [state-jail felony], then it will cause my client to be
enhanced by the word ‘felony’ and not by the actual offense committed.”
12
penal code. Therefore, his equal protection claim cannot succeed. 12 See
Downs, 244 S.W.3d at 518; Tucker v. State, 136 S.W.3d 699, 701 (Tex. App.—
Texarkana 2004, no pet.) (overruling an appellant’s equal protection argument
because, in part, the record did not indicate whether the appellant’s out-of-state
convictions involved burglary of a building or a habitation). We overrule
appellant’s second point.
Conclusion
Having overruled appellant’s points, we affirm the trial court’s judgment.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
DAUPHINOT, J., filed a dissenting opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: September 4, 2014
12
We do not reach whether appellant could have succeeded on his equal
protection claim if he had proved that he was similarly situated with Texas state-
jail-felony convicts. We note, however, that the court of criminal appeals has
held that a conviction for a federal offense that would not be a felony under
Texas law may enhance a sentence under section 12.42. See Ex parte Blume,
618 S.W.2d 373, 374, 376 (Tex. Crim. App. 1981); see also Alvarado v. State,
596 S.W.2d 904, 906 (Tex. Crim. App. [Panel Op.] 1980) (concluding that a
felony conviction under a former penal code could be used for enhancement
even though the crime was not a felony under a new penal code); Dotson v.
State, 28 S.W.3d 53, 56–57 (Tex. App.—Texarkana 2000, pet. ref’d) (holding that
a Louisiana felony theft conviction could be used for enhancement although the
crime would have qualified only as a Class B misdemeanor in Texas).
13